NOT FOR PUBLICATION UNTIL
RELEASED BY THE
HOUSE ARMED SERVICES COMMITTEE
STATEMENT OF
BRIGADIER GENERAL JAMES C. WALKER
STAFF JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS
BEFORE THE
HOUSE ARMED SERVICES COMMITTEE
7 SEPTEMBER 2006
NOT FOR PUBLICATION UNTIL
RELEASED BY THE
HOUSE ARMED SERVICES COMMITTEE
Chairman Hunter, Ranking Member Skelton, members of the Committee, good morning.
I wish to thank you for the opportunity to appear before you today, and for this Committee’s
interest in the military commissions process. I assumed duties as Staff Judge Advocate to the
Commandant on 25 August, and look forward to working with the committee on this and future
matters.
Military commissions are a necessary forum for the trial of unlawful enemy combatants
captured in the Global War on Terror. They can provide the flexibility essential for dealing with
these individuals in the construct of a war with no readily identifiable end.
Since the Supreme Court’s decision in Hamdan v. Rumsfeld in June, a significant amount
of effort has been devoted to drafting a legislative proposal to address shortfalls with the
commissions identified by the Court, as well as the concerns of Congress and the American
people. While this work occurred during my predecessor, Brigadier General Sandkuhler’s tour, I
am aware that military judge advocates provided feedback in response to drafts circulated via the
Department of Defense. Additionally, following a meeting between the Attorney General and
The Judge Advocates General, uniformed attorneys met with Department of Justice
representatives to discuss the proposed legislation and participated in subsequent discussions.
The draft legislation submitted by the President incorporates a number of comments presented by
the military judge advocates in those meetings.
The Hamdan decision underscores the necessity of ensuring that military commissions
reflect American values such as due process and the rule of law. In previous hearings on this
very topic, the word “balance” has been used repeatedly to describe the nature of the challenge
before us. Striking the balance between individual due process and our national security
interests, while maintaining our nation’s flexibility in dealing with terrorists and unlawful enemy
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combatants we encounter on the battlefield is the end we all seek. At the end of the day, the
system we create must provide the “judicial guarantees which are recognized as indispensable by
civilized peoples,” as required by Common Article 3 of the Geneva Conventions.
In determining what would constitute “indispensable judicial guarantees,” a plurality of
the Court looked to the “fundamental guarantees” listed in Article 75 of Additional Protocol I to
the Geneva Conventions of 1949. These Article 75 enumerated rights include, among others, the
presumption of innocence the right against self-incrimination, and the right to presence during
one’s trial. Throughout the drafting process I previously described, the Judge Advocates General
steadfastly maintained that a system which would permit the introduction of evidence against an
accused, outside of his presence, is objectionable. I join them in this regard, and in their
enthusiasm in continuing to work with Congress to create a system which will simultaneously
help to defend our nation from those who seek to destroy it, while upholding the values which
have set us apart for over 230 years.
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